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Wednesday, May 2, 2018

In our view, the two Courts below, therefore, were right in holding the appellant guilty of commission of the offences in question by properly appreciating the ocular evidence of the prosecution witness notwithstanding the death of the co-accused, which was of no relevance for deciding the involvement of the appellant in commission of crime.

J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the accused against the
final judgment and order dated 25.04.2007 passed
by the High Court of Judicature at Madras in
Criminal Appeal No. 804 of 2006 whereby the High
Court dismissed the appeal filed by the
appellant(Accused) and confirmed the order dated
02.08.2006 passed by the Additional Sessions
Judge, Namakkal (Fast Track Court) in Sessions
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Case No.5 of 2006 convicting the appellant under
Sections 364 and 302/34 of the Indian Penal Code,
1860 (hereinafter referred to as “IPC”) and
sentenced him to undergo rigorous imprisonment
for 7 years under Section 364 IPC and to pay a fine
of Rs.1000/-, in default of payment of fine, to
undergo further simple imprisonment for one month
and imprisonment for life under Section 302/34 IPC
and to pay a fine of Rs.5000/- in default of payment
of fine, to undergo further simple imprisonment for
two months. The sentences would run
concurrently.
2. In order to appreciate the issues arising in the
case, it is necessary to set out the prosecution case
in detail:
3. One person by name "Kumar" (since dead) was
the uncle of a girl "Geetha". At the relevant time,
Geetha was in sixth standard. Kumar was married
but living separately from his wife. Kumar and
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Geetha were living in the one locality at a short
distance. Kumar had developed liking for Geetha
and wanted to marry her.
4. Murugan (father of Geetha) was not agreeable
to the Kumar's proposal to marry Geetha.
Murugan(Geetha’s father) used to say that Kumar
had already ruined the life of his wife and now he
wanted to ruin his daughter's life also. Kumar, on
the other hand, used to threaten Geetha that one
day he would kidnap her and marry her.
5. It is the case of prosecution, that on
01.12.2002 afternoon, Kumar went to the house of
Geetha and demanded "Chili" to cook mutton. At
that time, Geetha was alone in the house. When
Geetha refused him to give Chili, Kumar entered
into the house and took Chili of his own and left the
house saying that one day, he would kidnap her
and rape her.
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6. On the same day at around 10 P.M., Kumar
along with Murugan(appellant), who is his cousin
brother (his aunt's son) went to Geetha’s house and
invited Murugan(Geetha’s father) for a drink and
non-veg. dinner at his house. Murugan(Geetha’s
father) accepted the invitation and went along with
both of them to Kumar's house.
7. When Murugan(Geetha’s father) did not
return home, Geetha (PW-1) alone went to Kumar's
house at around 11 P.M. to find out as to why her
father has not returned so far and what was he
doing in Kumar's house for such a long time. On
reaching there, she, however, found that trio
(Kumar, Murugan and the appellant) were sitting in
the room on one iron cot and were dining together.
The trio told Geetha that her father - Murugan
would be coming shortly. Thereafter Geetha
returned to her house.
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8. Since Murugan did not return home till next
day morning, Geetha (PW-1) and her mother Saroja
(PW-2) went early morning to Kumar's house to find
out why Murugan has not returned so far to his
house. The front door of the Kumar's house was
closed. Both of them, therefore, pushed the front
door and on opening, they found that Murugan's
dead body was lying in the room near iron cot with
many injuries on his body.
9. It is this incident which gave rise to filing of
FIR dated 02.12.2002 (Ex-P-18) by Geetha (PW-1) in
PS Jedarpalayam, which was registered as Crime
No. 224 of 2002 under Sections 302/364/34 of IPC.
The police then started investigation, visited the
house of Kumar, prepared Mahazar (Ex.P-13),
drawn rough sketch (Ex.P-19), took photographs,
prepared inquest report, recorded the statements of
witnesses, conducted post-mortem of the dead body
(Ex.P-4) and recovered the articles (M.O. 5 and 12 ).
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10. The police then on 03.12.2002 arrested
Kumar, who confessed his guilt. His confessional
statement was accordingly recorded (Ex.P-15).
Thereafter the police recovered weapon used in the
crime (Aruval-MO-14) and the blood stained green
shirts at his instance from his father's house. It was
then followed by the appellant's arrest on the same
day.
11. The police, on completing the investigation,
filed the charge sheet against Kumar and the
appellant herein for commission of the offences
punishable under Sections 364 and 302/34 of IPC.
The case was then committed to the Additional
Sessions Judge, Namakkal for trial (Sessions Trial
No. 5/2006).
12. Before the trial could begin, the main accusedKumar
died. The trial against him, therefore, stood
abated whereas it continued against the co-accused
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–appellant herein. The appellant, however, abjured
the guilt.
13. In order to prove the charges, the prosecution
examined 12 witnesses, marked 20 exhibits and
produced 15 material objects. In the proceedings
under Section 313 of the Criminal Procedure Code,
1973 (hereinafter referred to as “the Code”), the
appellant was asked to explain the circumstances
appearing against him but he denied the charges
including the circumstances without offering any
explanation.
14. By order dated 02.08.2006, the Additional
Sessions Judge held the charges proved against the
appellant and accordingly convicted him for
commission of the offences punishable under
Sections 364 and 302 read with Section 34 of IPC
and awarded life imprisonment under Section 302
IPC and seven years under Section 364 and a fine
amount of Rs. 5,000/- and Rs.1000/- respectively.
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15. The appellant felt aggrieved by his conviction
and the sentences awarded by the Additional
Sessions Judge and filed appeal in the High Court.
16. By impugned judgment, the High Court
dismissed the appeal and confirmed the judgment of
the Additional Sessions Judge, which has given rise
to filing of the appeal by way of special leave by the
accused –Murugan in this Court.
17. Heard Ms. Chitrangda Rastravara, learned
counsel for the appellant and Mr. M. Yogesh Kanna,
learned counsel for the respondent.
18. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeal.
19. We have perused the evidence with a view to
find out whether the approach, reasoning and
conclusion arrived at by the two Courts below are
legally sustainable or not.
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20. It is a settled principle of law that when the
Courts below have recorded concurrent findings
against the accused person which are based on due
appreciation of evidence, this Court under Article 136
of the Constitution of India would be slow to interfere
in such concurrent findings and would not appreciate
the evidence de novo unless it is prima facie shown
that both the Courts below did not either consider the
relevant piece of evidence or there exists any perversity
or/and absurdity in the findings recorded by both the
Courts below etc.
21. We, however, made endeavour to peruse the
evidence with a view to find out as to whether the
concurrent findings of both the Courts below have
any kind of infirmity or/and whether the concurrent
findings are capable of being legally and factually
sustainable or need to be reversed. Having gone
through the evidence, we are of the view that the
findings are legally and factually sustainable in law.
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22. In our considered opinion, the two Courts
below have rightly held that the appellant's
conviction was based on circumstantial evidence
which, in this case, the prosecution was able to
prove it by adducing evidence. In other words, we
also find that the prosecution was able to prove the
chain of circumstances/events appearing against
the appellant without any break therein and hence
the appellant’s conviction deserves to be upheld.
23. On perusal of the evidence, we find that the
prosecution examined three witnesses (PW-1, PW-2
and PW-3) to prove material circumstances and the
chain of events against the appellant which first
included the motive behind the commission of the
crime followed by the manner in which the incident
took place leading to the death of Murugan.
24. The motive, according to the prosecution, was
that Kumar had a grudge against the deceased
because he was not agreeable to the Kumar's
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proposal to marry his daughter-Geetha. This was
proved with the evidence of PWs-1, 2 and 3. It was
believed by the two Courts below and, in our
opinion, rightly.
25. The prosecution then proved that the appellant
along with Kumar had gone to the house of the
deceased for inviting him for dinner at Kumar's
house on the same night. The deceased accepted
the invitation and went to Kumar's house to have
dinner with Kumar and the appellant.
26. It was then proved that Geetha (PW-1) had
gone to Kumar's house at around 11 P.M. to see
why her father did not return to his house and on
reaching there, she found all the three sitting on
iron cot and were having dinner. As per post
mortem report, it was proved that Murugan died
between 11 P.M. and 12 P.M. the same night.
27. In our opinion, when the appellant was sitting
in the company of the deceased (Murugan) till 11
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P.M. along with Kumar in his house and had dinner
with Murugan and Kumar and immediately
thereafter Murugan died, the appellant in
cross-examination of PWs-1,2 and 3 was not able to
elicit anything to discredit the evidence of the
abovesaid three witnesses and to disprove the
circumstances deposed against him.
28. That apart, in our opinion, it was necessary for
the appellant to have explained the aforementioned
circumstances appearing against him in the
proceedings under Section 313 of the Code. The
appellant, however, failed to explain any
circumstances and denied his involvement in the
crime.
29. We find from the evidence eight circumstances
appearing against the appellant. These
circumstances are: First motive was against the
deceased due to his not agreeing to the proposal of
marriage of Kumar with his daughter; Second, the
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appellant and Kumar, both being the cousins, knew
each other very well; Third, both went together to
the house of the deceased to invite him for a dinner
at Kumar’s house; Fourth, all the three had dinner
together at Kumar’s house; Fifth, Murugan died
immediately after dinner; Sixth, Kumar gave his
confessional statement; Seventh, recovery of
weapon and cloths at the instance of Kumar; and
Eighth, the dead body was found lying near iron cot
where Murugan(deceased) had last dinner with
Kumar and the appellant.
30. In our view, the aforementioned eight
circumstances do constitute a chain of events
against the appellant and lead to draw a strong
conclusion against the appellant and Kumar for
having committed the murder of Murugan.
31. In our view, it clearly establishes that both
(Kumar and the appellant) had a common intention
to eliminate Murugan. In our view, there could be
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no other person other than the appellant and
Kumar, who committed the crime in question.
32. A theory of "accused last seen in the
company of the deceased" is a strong
circumstance against the accused while
appreciating the circumstantial evidence. In such
cases, unless the accused is able to explain properly
the material circumstances appearing against him,
he can be held guilty for commission of offence for
which he is charged. In this case, it was rightly held
by the two Courts below against the appellant and
we find no good ground to disturb this finding.
33. We are not impressed by the submission of the
learned counsel for the appellant when she argued
that Kumar (main accused) having died without
facing the trial, the present appellant is entitled for
a clean acquittal because nothing now survives
against the appellant after Kumar's death for
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appellant’s prosecution. We do not agree with this
submission.
34. In our view, death of Kumar was of no
significance so far as the appellant’s prosecution is
concerned. The reason being that this was a case of
common intention of the two accused persons to
eliminate Murugan and the appellant was one of the
accused persons, who was found actively
participating in the crime till last along with the
other accused, who died.
35. In our view, the two Courts below, therefore,were right in holding the appellant guilty ofcommission of the offences in question by properlyappreciating the ocular evidence of the prosecutionwitness notwithstanding the death of theco-accused, which was of no relevance for decidingthe involvement of the appellant in commission ofcrime.
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36. We, therefore, find no good ground to take a
different view than what is taken by the two Courts
below and concur with their reasoning and
conclusion with our additional reasoning elaborated
above.
37. The appeal is thus found to be devoid of any
merit. It fails and is accordingly dismissed.
………...................................J.
[R.K. AGRAWAL]